Following his presentation to another packed North East Landlords meeting held on 22 September 2022, Sweeney Miller landlord and tenant litigation solicitor, Charlie Lynn, summarises the implications of wide ranging proposed changes to S.21 Housing Act 1988.
- A Bill will be introduced in the 2022-23 parliamentary session to abolish ‘no-fault’ section 21 evictions in the private rented sector.
- A section 21 notice can only be served to expire at or beyond the expiry of the contractual term of the tenancy.
- It cannot be served during first four months of the tenancy (unless it is a replacement tenancy).
- It cannot be served in response to a local housing authority improvement notice known as a retaliatory eviction.
- With effect from the 1st of October 2021, the minimum notice period to be given in a section 21 notice has returned to pre-covid timescales of two months.
- The notice gives a date for the tenant to leave the property. The tenancy continues if the tenant remains after that date and a court order must be applied for if the tenant remains.
For a section 21 notice to be valid, the Deregulation Act 2015 introduced new rules in relation to the way in which tenancies of properties in England can be terminated and which restrict the landlord’s ability to serve a section 21 notice.
The legislation suggests (although it is not entirely clear) that the requirement to provide the tenant with prescribed information will not apply to Assured Shorthold Tenancies granted before 1st October 2015 that are still in existence and have not been renewed since 1st October 2015. This is on the basis that the How to rent booklet was not in existence before that date. However, it is likely to be best practice to provide the tenant with the prescribed information in any event before serving a section 21 notice (which must now be in the prescribed form).
Landlords MUST have provided the tenant with a gas safety certificate, in accordance with regulation 36 of the Gas Safety (Installation and Use) Regulations 1998 (SI 1998/2451) (Gas Safety Regulations).
If a landlord fails to provide the tenant with a copy of the gas safety record before the start of the tenancy, the landlord will not be prevented from serving a section 21 notice provided that the landlord gives the tenant the Gas Safety certificate before it serves the section 21 notice.
It will be expected that landlords keep track of when each annual gas safety record was issued and when it was provided to the tenant, so it is very important that accurate records of this information are kept.
Energy Performance Certificate (EPC)
A landlord MUST have provided the tenant with an energy performance certificate free of charge. An EPC is valid for 10 years and can be used throughout that period. To let premises, a minimum standard of EPC band E is required for both domestic and non-domestic private rented property.
How to Rent Booklet
Landlords MUST supply the tenant with a copy of the current version of How to rent: The checklist for renting in England (How to Rent Booklet).
Landlords are not required to supply a further copy of the booklet each time a different version is published during a tenancy.
The How to Rent Guide should be provided to the tenant in hard copy, or via email so long as the tenant has previously agreed to accept notice and/or documents by email.
Where a deposit is paid by the tenant to the landlord on commencement of the tenancy, since the 6th of April 2007, the landlord MUST joint a tenancy deposit scheme and protect the deposit within 30 days of receipt.
Further, the landlord MUST give certain prescribed information within 30 days of receipt. This includes:
- Generic information about the scheme, which the TDS scheme administrator is required to provide to the landlord
- Specific information about the deposit and the tenancy under which it is paid
Failure to address the above will require the deposit to be returned prior to the service of a section 21 notice.
If the landlord fails to comply with the above requirements- the tenant may make an application to court to recover compensation.
Prescribed Form 6A
Section 21 notices MUST be served in Form 6A. This is available on the Government website, that can be found here and asks for basic information such as tenant name, property address, date the tenant must leave ETC.
If the property is required to be licensed under Part 2 (Houses in Multiple Occupation) or Part 3 (Selective Licensing) of the Housing Act 2004, failure to do so will render the section 21 notice invalid.
A landlord may only serve a valid section 21 notice once a licence is obtained or if it can be shown that one has been applied for.
Selective licensing requirements are dependent on the location of the property. It is essential for landlords and their agents to keep track and comply with the relevant local authority’s licensing requirements.
Service of the notice is often overlooked yet is one of the most common pitfalls in practice regarding the validity of the notice.
Section 196 of the Law of Property Act 1925 allows for valid service of the notice to be made by registered post or recorded delivery, or personal delivery to the tenant’s property, but only when the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, service can be made by other methods specified in the tenancy agreement. On that basis, clear proof of service is always highly advised and it is important that any tenancy agreement includes detailed terms regarding service.
And finally…. a reminder about the Smoke and Carbon Monoxide Alarm Regulations
The Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022 came into force on the 1st of October 2022. From that date, all relevant landlords must:
- Ensure at least one smoke alarm is equipped on each storey of their homes where there is a room used as living accommodation. This has been a legal requirement in the private rented sector since 2015.
- Ensure a carbon monoxide alarm is equipped in any room used as living accommodation which contains a fixed combustion appliance (excluding gas cookers).
- Ensure smoke alarms and carbon monoxide alarms are repaired or replaced once informed and found that they are faulty.
The requirements are enforced by local authorities who can impose a fine of up to £5,000 where a landlord fails to comply with a remedial notice.
Please note that this information is for general guidance only. If you have any specific queries regarding landlord and tenant matters, then please get in touch with Charlie on 0191 568 2050 or email firstname.lastname@example.org. For details about future North East Landlords(NEL) events please check the Sweeney Miller Law website and social media, as well as NEL’s Facebook page, here.